Skip to main content

RESTITUTION OF CONJUGAL RIGHTS

 RESTITUTION OF CONJUGAL RIGHTS

BY NUPUR GARG

INTRODUCTION

Marriage is one of the main important vital roles in all human life. Every man and woman has

dreams about their marriage. After the marriage, the parties have some obligations to their

life. After the marriage, the sexual relationship between the husband and wife is also an

important part of the marriage. If any one of the parties like a husband or wife has withdrawn

from the society without any reasonable causes, the affected person may apply by petition to

the district court for the restitution of conjugal rights. If there is a reasonable cause the court

cannot decree the restitution of conjugal rights but if there is no reasonable cause the court

will grant a decree for the restitution of conjugal rights.

The conjugal rights are the rights to claim the both of the parties i.e., the husband as well as

the wife. Hindus can claim the restitution of conjugal rights under the Hindu marriage act,

1955, Muslims can claim under the General Law, Christians can claim under the Indian

Divorce Law, 1869, Parsis can claim under the Parsi Marriage and Divorce Act, 1969 and the

persons who married under the Special Marriage Act can claim under the Special Marriage

Act, 1954.

Section 9 of the Hindu Marriage Act (HMA), 1955 and Section 22 of the Special Marriage

Act (SMA), 1954 provides for restitution of conjugal rights which states that if a husband or a

wife has withdrawn from the society of the other without any reasonable excuse, then, the

aggrieved party can file a petition before the District Court for restitution of conjugal rights

i.e. to bring the spouse back to live with the other spouse. The court may grant a decree of

conjugal rights if it is satisfied that the petition is based on truth and there is no legal ground

for dismissing the petition.

CONSTITUTIONAL VALIDITY OF SECTION 9

Section 9 has always been in controversy regarding its constitutional validity. However, the

same was taken into consideration in true sense in 1983 by the Andhra Pradesh High Court.

In 1983, in the case of T. Sareetha vs T. Venkata Subbaiah, the High Court of Andhra

Pradesh struck down Section 9 of the Act declaring it null and void. It was decided by a

single judge bench, P. Choudhary, who held that it breaches the right to privacy as

cohabitation was an intimate matter and it was better if the couple decided rather than the

state. Another reason cited was that restitution of conjugal rights could result in forced sexual

cohabitation for women who would face grave consequences.

However, this decision was rescinded and a diametrically opposite view was taken by the

Delhi High Court in the same year in Harmander Kaur v Harvinder Singh Choudhry,

critiquing the stand taken by the Andhra Pradesh High Court. According to the Delhi High

Court, emphasis should not be given on sex rather on maintaining the relationship between

the two spouses which would be 'beneficial for the children and society'. The Delhi High

Court argued that the section aimed at consortium rather than cohabitation and sexual

intercourse was not the ultimate goal of marriage. Hence, the Supreme Court upheld the


decision of the Delhi High Court and overruled the decision of the Andhra Pradesh High

Court.

DEFENSE FOR RESTITUTION OF CONJUGAL RIGHTS:

When there is any reasonable cause for the separation between the spouses, the decree of the

restitution of conjugal rights is not granted by the court. For a reasonable excuse, there are no

hard and fast rules about it, and it may be decided by the court by means of justice, equity

and good conscience.

The followings are some of the examples of the reasonable excuses:

1. The petitioner has treated the other party with cruelty.

2. The petitioner has converted to other religions.

3. The petitioner has been suffering an incurable form of leprosy.

4. The petitioner has been of an unsound mind.

5. The petitioner has been suffering from venereal disease.

6. The petitioner has entered a religious order.

Whether the person has reasonable causes to withdraw from the society, the question arises,

the burden of proving the reasonable excuses shall be on the person who has withdrawn from

the society. Itwari vs. Asghari, in this case the petition filed against his first Muslim wife for

the restitution of conjugal rights. The court held that the husband cannot compel the wife to

live with him in his house. The husband cannot compel his wife because compulsion is also a

cruelty. So, the High Court has refused to provide the decree for the restitution of conjugal

rights against the wife.

CONCLUSION

Granting a decree for restitution of conjugal rights can compel spouses to live together but it

in no way can ensure an effective relationship. Further, if such a decree violates any

constitutional right, then it becomes extremely crucial to repeal it. With all the ambiguities

that lie within the sections pertaining to restitution of conjugal rights, it has become

extremely important for the Supreme Court to look into the matter and to ensure that this

right which is considered as a remedy does not violate somebody’s fundamental rights and in

case if it violates the fundamental rights, then the same must be held unconstitutional at the

earliest.

Comments

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree